She represents my home district in San Francisco. Many of us here, while we have appreciated Ms. Pelosi’s efforts over the years, have also believed that it was time for Ms. Pelosi to step aside and allow new and younger leadership in the House. (Many of us also felt the same way about our Senior Sen. Dianne Feinstein.)

My progressive friends and I are also pragmatists. We understand and appreciate that at this precarious time in our nations history, there is an intense need for a speaker in the House like Pelosi. The fact that none of the newly elected House members who have opposed her selection as Speaker have stepped up to run against her speaks volumes. There is no onein the House of Representatives in this next Congress who has the breadth or depth of experience to guide that chamber through this tumultuous time.

New House Rules

Each house of Congress, at the beginning of the new session, has the Constitutional right to make its own rules. This generally falls on the majority party, for obvious reasons, and the 116th House is no exception.

There are many notable changes in the proposed new rules which will be voted on by the Democratic caucus next month and by the entire House next January. There is one notable change that I want to discuss briefly here.

Changes in the Supermajority Vote to Raise Taxes.

The way it is now: The Republican held house enacted a rule requiring a supermajority vote of 3/5 of the members of the House to increase taxes on anyone.

It is widely thought this rule was enacted in order to protect the massive tax breaks for the wealthy that were enacted by the previous Congress.

The Proposal: Require a supermajority vote to raise taxes on the lower 80% of American taxpayer. This would allow a simple majority vote to raise taxes on Americans earning more than $108,000 annually. At first blush, this makes complete sense.

My progressive friends and I are also pragmatists. We understand and appreciate that at this precarious time in our nations history, there is an intense need for a speaker in the House like Pelosi.

According to the Washington Post, “Some liberal Democrats said that if the party limits its own ability to raise taxes, it could make it harder for the House to adopt policies that could require tax increases, including a Medicare-for-All health program or a plan for tuition-free state colleges and universities.”

For example, Eric Levitz of the Intelligencer writes, “Kirsten Gillibrand’s FAMILY Act finances an expansion of paid family and medical leave with a 0.4 percent increase in the payroll tax (split between employees and employers). Her law would make life much easier for many caretakers in the bottom 80 percent, while increasing their tax bills by a near-indiscernible amount. And yet, in the name of helping the middle class, the new Democratic House majority wants to give their Republican colleagues the power to veto such legislation.”

Furthermore, the Post reports that “MoveOn criticized the proposal on Twitter on Friday as “a staggeringly bad idea,” while Kenneth Zinn, political director of National Nurses United, said it was “incredibly shortsighted.’”

Keep in mind, that even if small tax increases were required in order to make such social programs available, the savings in medical care, prescription drug costs, tuition, etc would more than offset the increases.

While it is true, if passed, the new rule could be waived by the House Rules Committee, Democrats worry about the optics of that.

The legislation was introduced during the last Congress, but for obvious reasons it has never been allowed out of committee. The legislation has 123 cosponsors including the original 51. Pelosi is not one of them. That together with the proposed rule requiring a supermajority vote to raise taxes on the lower 80% would make it seem that much of the legislative agenda promulgated by many new House members, is unattainable as it would be voted down in the House.

Maybe I’m not giving Pelosi enough credit, I don’t know, but whether and in what form this rule is adopted, and how it is managed in upcoming debates, bears watching.

in case you were wondering . . .

]]>http://larryshockey.com/nancy-pelosi-the-116th-congress-new-rules-and-medicare-for-all/feed/01057Leave the Deplorables Alone! (They Can’t Help It.)http://larryshockey.com/leave-the-deplorables-alone-they-cant-help-it/
http://larryshockey.com/leave-the-deplorables-alone-they-cant-help-it/#respondMon, 12 Nov 2018 22:20:02 +0000http://larryshockey.com/?p=1044The BLUE WAVE continues to roll, leaving ripples on the shore and many questions and races yet to be decided, the most publicized of which are the Governors races in Florida and Georgia, Senate races in Florida and Arizona, and 10 House seats. Democrats did resoundingly well, taking back the House but leaving the Senate in the hands of the Republican party. But what you may not have realized is how Democrats performed overall:

Flipped 290+ State legislature seats

Flipped 30+ House seats

Elected 100+ women to the House, a record

Flipped 7+ Governorships

Flipped 7 State legislature chambers

Broke 4 GOP supermajorities in State legislatures

Expanded voting rights in 4 States

Flipped 3 State Supreme Court seats

Expanded Medicaid in 3 Red States

Raised the minimum wage in 2 States

Restored voting rights to felons in 1 of 4 states that removed them

Ended gerrymandering in Michigan

Backed trans rights in Massachusetts

Elected the nation’s first openly gay Governor in Colorado

Elected the first two Muslim women to the House in Michigan (Palestinian American) and Minnesota (Somali American)

Elected the first two indigenous women to Congress, one of whom is an out lesbian

And then, the Orange Tyrant did the only thing he knows how to do when things don’t go his way, he threw a tantrum, firing Attorney Jeff Sessions and replacing him with “Yes” man Matthew Whitaker, Sessions’ former chief of staff at Justice, who is utterly unfit for the job, who has not only shown bias against the Mueller investigation, but has openly discussed how it might be shut down, but refuses to recuse himself from overseeing the investigation.

Then he yanked the press credentials from CNN’s Jim Acosta for being “rude” and has publicly stated that he might revoke more credentials from unruly reports. And just this weekend, he refused to attend a ceremony at an American cemetery outside Paris during the commemoration of the end of World War I because it was raining and he didn’t want to get his hair wet.

I don’t know about you, but I’m really tired of yelling at TV news and reading Facebook rants about how bad this administration is. Yeah, I know it makes us feel better to yell into the echo chamber of our friends list, but it doesn’t really (often) change anything.

We rail at the Trump base, crying “How CAN they!?” But they do. And they show no signs of letting up.

Look, folks, by know we should know that Trump isn’t gonna change–he’s probably just going to get worse. And his followers love him for it. And we should all know the futility of trying to have a reasonable, fact-based dialogue with them is impossible when all they do is hurl insults and profanity while spouting fact supported by Fox News.

Democratic members of Congress–in the House and in the Senate–must coalesce, must stop infighting, and must look at the messages that allowed Democratic candidates to take back the House, incorporating those messages into the party-at-large.

Realistically, Nancy Pelosi is going to return to the speaker’s podium in the House of Representatives. I don’t like it any more than most people I know. Many of us here in her district in California (including me) hoped she would not run for re-election. Most of us feel like it is time for someone new and younger. She will turn 80 at the end of her new term. She really didn’t want to run, and probably wouldn’t have but for Trump. Now she’s back and has made it clear she’s not thinking about stepping aside even though many of the newly elected representatives have made it equally clear they don’t favor her for Speaker.

I have made peace with it. Nancy Pelosi is one of the most gifted and talented legislators in the House of Representatives. Let the lightening bolts and insults roll off our backs. She’s good. She’s really, really good at what she does, and even if we don’t realize it, we (everyone but the Republican base) are lucky to have her at the helm in these tumultuous times.

With Pelosi leading the charge, the House must immediately begin drafting and passing legislation that reflects their support for the poor, working poor, and middle class: healthcare, protecting coverage for preexisting conditions, bringing down the cost of prescription medication, support for Social Security, Medicare and Medicaid; establishing a living wage; rebuilding our crumbling infrastructure, meaningful immigration reform (including protecting dreamers and getting migrant children out of “immigrant jail”), education, meaningful gun legislation, and protecting our environment–again.

I am pragmatic about this list of “can-do’s.” I am almost certain that legislation passed in the House on any of these items in the next 2 years will be voted down by the Senate, and that if any of it makes it to the President’s desk, would be vetoed. But in 2020, the Democrats would have a laundry list of what they tried to do for those who felt left behind, a list of “we really tried, and maybe now you see how the Republican Party really feels about you.”

And we have to stop wringing our hands over the Mueller probe. It will be what it will be. Trump’s shenanigans alone are ample proof of his culpability in this whole mess. Keep an eye on it, but let it go. Let it run its course. Remember, although the House files articles of impeachment, it is the SENATE that holds the trial. No one in their right minds could ever believe that this Senate would ever hold this President accountable regardless of how overwhelming the evidence.

What do we do in the meantime? We support groups who are dedicated to overturning voter suppression laws, who organize registration drives, and groups who bring pressure on the Democratic establishment to adopt progressive messages in their campaigns and to add them to the platform.

So gird your loins for 2 more years. Push for an agenda. Push for registering voters. Work to get millennials enthusiastic about voting. Reach out to under served communities. And above all, remember that messages based on particular voting blocs have not been effective. We need messaging that cuts across socioeconomic boundaries, that touches ALL of us.

Even though the sound of the words “President Trump” are to my ears like the sound of fingernails on a chalkboard, I am recalling that we made it through almost 2 Nixon terms, 2 Reagan terms, and 2 Bush administrations. We can make it through this, however unpleasant it may be.

Trump’s basket of deplorables is a lost cause. Don’t focus on them, focus on us. We need to get US excited and involved and ready to take back the White House in 2020!

In case you were wondering . . .

]]>http://larryshockey.com/leave-the-deplorables-alone-they-cant-help-it/feed/01044Cuts to Social Security, Medicare, Medicaid to Pay for Trump’s Billionaire Tax Cutshttp://larryshockey.com/cuts-to-social-security-medicare-medicaid-to-pay-for-trumps-billionaire-tax-cuts/
http://larryshockey.com/cuts-to-social-security-medicare-medicaid-to-pay-for-trumps-billionaire-tax-cuts/#respondWed, 31 Oct 2018 15:28:27 +0000http://larryshockey.com/?p=1016Alright, so you’re not of retirement age. That’s a looong way off for you. Or, let’s say you’ve been responsible and you’ve been dutifully saving and investing for your retirement. Why does this matter?

It matters because you’ve all been paying for it–all your working lives unless you’re self employed, in the military or are a first responder. And, you’re going to continue paying for it even if there’s really nothing there in the end when you’re eligible to collect “benefits.”

Do you really think the government is going to stop collecting your money, that goes into their piggy bank where it collects interest and they can dip their fingers into it to pay for wars and such without paying it back? What planet are you living on?

Here’s what’s happening in the Republican party right now according to an October article on the MaddowBlog:

Larry Kudlow, the director of the Trump White House’s National Economic Council, recently said he wants to take aim at “entitlements” as early as “next year.” A few months earlier, House Speaker Paul Ryan (R-Wis.) said he wants to see policymakers bring the budget closer to balance by cutting “entitlements.” Rep. Steve Stivers (R-Ohio), who currently chairs the National Republican Congressional Committee, made the same argument in August.

And Congress, with presidential approval, has played sort of fast and loose with the funds in the trust, but they haven’t really seriously sought to reduce benefits–until now. Sure, there has been talk of reducing what the GOP refers to “entitlement programs” (Social Security, Medicare and Medicaid) but they’ve never had the numbers in Congress to push those reductions through. Now they do, and unless voters turn out in the November 6th election to elect more Democrats, a reduction in these programs seems almost certain.

Economists agree that Republican tax cuts for the 1% will result in a more than $1 trillion deficit. The Republican plan to reduce the deficit is to do away with the remnants of the Affordable Care Act and to cut “entitlements.”

“The economy is so good!” people say. “Employment is way up!” people say. But how many jobs to you have to have to feed your family? Sure you can get a job more easily, but the facts show that wages have remained stagnant while inflation continues to rise, meaning that the dollar doesn’t go as far as it used to.

And here’s another fallacy about “entitlements.” Let’s say you have a decent job that includes retirement and heath care benefits. Let’s say you have even worked long enough at that job for your retirement and health care to vest. You’re sitting pretty, right? Maybe not so much if Congress cuts your Social Security and Medicare benefits.

If you’re wealthy, social security may not affect you very much, but it can be a couple thousand a month and that will buy you and your buddies a few lunches and rounds of golf at the country club. But once you turn 65, you are forced to go on Medicare. Again, if you’re wealthy, you just go out and buy the Cadillac plan and you’re set, but if you are like most of us–the middle class—you could find yourself coming up way short, having to purchase a costly health care plan to cover some of the expenses your employer used to pay for like the 20% of coverage and prescription drugs, vision and dental that Medicare doesn’t cover.

And if you are part of the poor or working poor and must rely on Medicaid, you could find yourself sitting in the county hospital emergency room to get treatment for your toothache.

Think about that when you go to the polls next Tuesday. You ARE going to vote next week, right?

In case you were wondering . . .

]]>http://larryshockey.com/cuts-to-social-security-medicare-medicaid-to-pay-for-trumps-billionaire-tax-cuts/feed/01016Beware the Ides of October: From Bork to Kavanaughhttp://larryshockey.com/beware-the-ides-of-october-from-bork-to-kavanaugh/
http://larryshockey.com/beware-the-ides-of-october-from-bork-to-kavanaugh/#respondSat, 29 Sep 2018 17:56:34 +0000http://larryshockey.com/?p=1004In a kinder, gentler time (read pre-Trump) the confirmation process for nominees to the US Supreme Court has been a mostly genteel procedure. In my lifetime there has been only one other hotly contested nominee, Robert Bork, who was nominated by Ronald Reagan on July 1, 1987, to replace a retiring Lewis Powell.

In the vast majority of cases where a nominee proved too controversial, for one reason or another, the president would either withdraw the nominee or the nominee would withdraw his name from consideration. And that would be it. Really civil.

No one wants a lightening rod on the Supreme Court, and no justice should want his or her rulings constantly questioned by the public because of their political beliefs.

Kavanaugh, like Bork, is a lightening rod. He squarely threw his political positions into the discussion on Thursday when he belittled Democratic Senators, when he combatively focused his ire on those in the left wing, the Clintons, and the 2016 election.

“This is nothing more than borking.”

He has stubbornly clung to the nomination almost as thought it were a claim of “right” and not a privilege based on merit. After all, he went to an elite college prep high school, was captain of the team, made good grades, hung out at the country club, went to Yale and Yale law, worked in the White House and served with Kenneth Starr during the Clinton impeachment era, then served on the DC Circuit Court of Appeals, a wellspring of Supreme Court Justices. “Dammit, I deserve this, and you cannot take it away from me!” he seemed to be saying.

And then, in the middle of his opening rant, he said of his accusers, “This is nothing more than borking.” I remember the confirmation hearings for Robert Bork. I found a fascination article in Constitution Daily, written on October 23, 2017, about the Bork nomination.

Bork was a conservative law scholar and a proponent of originalism, the legal theory that the Constitution should be interpreted as written by the Founders. (Much like Justice Scalia.) He was also a justice on the DC Circuit Court of Appeals, like Kavanaugh.

No one wants a lightening rod on the Supreme Court, and no justice should want his or her rulings constantly questioned by the public because of their political beliefs.

Senator Ted Kennedy reacted to the nomination with a public statement that quickly drew political battle lines over Bork’s nomination.

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy,” he said. (Bork later stated he felt every word in the statement was false.)

Senate Democrats brought up legal writings from Bork dating back in 1963 [24 years earlier], when he wrote a New Republic article about public accommodations and the proposed 1964 Civil Rights Act. Bork’s opponents were critical of his opinions about the Supreme Court’s Roe v. Wade decision. Bork’s testimony was also broadcast on live television.

Eventually, the Judiciary Committee, which was chaired by Senator Joe Biden, declined to recommend his nomination, but referred Bork out of committee to the floor of the Senate for a vote of the entire chamber.

On October 23, 1987, the Senate rejected the nomination by a vote of 58-42. Kavanaugh’s floor vote could come almost 31 years to the day later.

Eventually, the word “bork” was added to the Oxford English Dictionary. It means, to obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them. ‘‘We’re going to bork him’, said an opponent.’

Like Bork, Kavanaugh seems to be in this for the long haul. A senate vote seems inevitable. If either Trump or Kavanaugh had any shred of decency, for the stability of and confidence in the Supreme Court, any care for the lives of the people who have come forward to tell their allegations about the abuse they suffered at Kavanaugh’s hands, or if Kavanaugh had any shred of decency or care for the pain and suffering he is inflicting on his own family, either Trump would withdraw the nomination, or Kavanaugh would step aside.

They are both far too callus. Both men only care about themselves. They are made for each other. Both are bad for the country.

In case you were wondering . . .

]]>http://larryshockey.com/beware-the-ides-of-october-from-bork-to-kavanaugh/feed/01004Lindsey Graham’s Tirade Should Move Us All to the Polls in November.http://larryshockey.com/lindsey-grahams-tirade-should-move-us-all-to-the-polls-in-november/
http://larryshockey.com/lindsey-grahams-tirade-should-move-us-all-to-the-polls-in-november/#respondFri, 28 Sep 2018 19:41:56 +0000http://larryshockey.com/?p=999THIS is one of MANY reasons Democrats must take back the Senate next month. They have all forgotten how they blocked Merrick Garland’s nomination for MONTHS and how they vowed to block ANY nomination put forward by Hilary Clinton, should she win the nomination. THIS MUST BE STOPPED. The only way to do it is to GET OUT AND VOTE!

If you didn’t see it live, watch it here:

In case you were wondering . . .

]]>http://larryshockey.com/lindsey-grahams-tirade-should-move-us-all-to-the-polls-in-november/feed/0999With His Right-Wing Agenda Clearly Exposed, This Thin-Skinned Nominee Clearly Lacks the Judicial Temperament to Serve on the Supreme Courthttp://larryshockey.com/with-his-right-wing-agenda-clearly-exposed-this-thin-skinned-nominee-is-clearly-lacks-the-judicial-temperament-to-serve-on-the-supreme-court/
http://larryshockey.com/with-his-right-wing-agenda-clearly-exposed-this-thin-skinned-nominee-is-clearly-lacks-the-judicial-temperament-to-serve-on-the-supreme-court/#respondFri, 28 Sep 2018 19:34:16 +0000http://larryshockey.com/?p=997Clearly lacking in judicial temperament, Kavanaugh unleashes an emotional, boo-hoo, poor me, blame the leftists and Democrats (explicitly singling out the Clintons!) for this shame on my family tirade in his opening statement that he admittedly wrote himself, without help or input from anyone (giving us a clear insight to the true measure of the man, and how, like Trump, thin-skinned he is), then went on to stumble through answers to simple questions from the Republican-hired interrogator until Lindsay Graham stepped in with a tirade of his own.

Compare that with the opening statement made by his accuser, Dr. Christine Blasey Ford:

Smiling through the accolades of himself and the mud-slinging at Democrats, Kavanaugh went on to interrupt, badger, and question his Democratic questioners, being totally combative and disrespectful.

HOW IN THE HELL can we expect this man to sit as a neutral arbiter of matters on the Supreme Court!

In case you were wondering . . .

]]>http://larryshockey.com/with-his-right-wing-agenda-clearly-exposed-this-thin-skinned-nominee-is-clearly-lacks-the-judicial-temperament-to-serve-on-the-supreme-court/feed/0997NOW Would be a GREAT Time to Support Your Democratic Senatorhttp://larryshockey.com/now-would-be-a-great-time-to-support-your-democratic-senator/
http://larryshockey.com/now-would-be-a-great-time-to-support-your-democratic-senator/#respondFri, 28 Sep 2018 18:48:28 +0000http://larryshockey.com/?p=987

In just over a month, thirty-three seats in the United States Senate are up for election. Of those, only 9 are held by Republicans, 24 are held by Democrats, many of whom are serving in red states. Some of them are in trouble. A few incumbent Republican senators are arguably in trouble like Ted Cruz in Texas.

If you are a voter in one of these 24 states, you are strongly encouraged to support your Democratic candidate! Donate $5 or more if you can to his or her campaign, but even if you can’t donate, get out there on election day and VOTE! Especially if your Democratic senator is in a red state. Even if you are in a solidly blue state, there is no reason to feel smug or secure. Your Democratic senator needs your vote!

Senators in the following states are up for election.
(Clicking the state link below will take you to a Wikipedia page about that particular election.)

If you watched in dismay at yesterday’s Senate Judiciary Committee’s re-convened hearing on the confirmation of Brett Kavanaugh like I did, you should need little more convincing. Lindsay Graham’s angry tirade should have rung the alarm bells loudly enough.

In past months, focus has been on retaking the House of Representatives, I guess because the House is where articles of impeachment would be drawn up. But the impeachment trial is conducted in the SENATE.

Without the filibuster, Trump was able to appoint the wealthiest cabinet in US history–one which has been wracked with corruption, and insider and self dealing that has done nothing for the common citizen and everything for their wealthy, big-business cronies.

And just wait until after the midterms. You can bet that if Democrats don’t take back the Senate majority (and maybe even if they do) Trump will sack Attorney General Jeff Sessions and replace him with Lindsay Graham. If that happens, you can also bet that Special Counsel Robert Mueller will be sacked and the Russia probe, among others, will be closed down or severely limited.

If Democrats do not win a majority in the Senate, that will happen.

Court Appointments, Including the Supreme CourtBecause the Senate, first during President Obama’s administration, abolished the filibuster making it easier for the president to appoint cabinet members, heads of agencies, federal district court judges, and federal appellate court justices, and then, during the Trump administration abolished the filibuster for appointing Supreme Court nominees, this administration has been packing the courts with right-wing judgeswho are bringing their anti-environment, anti-worker, anti-women, anti-civil rights, pro big business agenda to the courts and writing those agendas into their decisions, affecting millions of Americans.

If, by the grace of God, Democrats are able to block–or to stall until after the midterms–the confirmation of Kavinaugh to the Supreme Court, a Democratically-controlled Senate would be able to block the nomination, as well as the nominations of ultra right wing conservative judges to the lower courts.

I’ll just tell you, right off the bat, I think it’s a GOOD idea. If you strongly disagree, you can stop reading here. If you want to know why, I’ll explain my reasoning.

First off, I’m a lawyer, so I have that inherent bias that lawyers can get to the truth–if that is what they are trying to do. We all know that lawyers are “hired guns” retained for the purpose of putting their clients’ spin on the facts and law of any given case. But there are limits to the amount of “spin” lawyers can do. For instance, their arguments must be in good faith and have a sound basis in the law. In other words, there must be some case law, somewhere, however tenuous or however strained the argument may be, that supports the attorney’s position.

And the position must be taken in good faith, that is not for an improper purpose, not to subvert the law, not to gain some improper legal advantage, to unlawfully avoid legal consequences. Things like that.

Lawyers get in trouble for doing otherwise and clients lose cases and lots of money in legal fees.

I’ve been around the track a few times, and I can tell you, sadly, that Senators are mostly inept when it comes to questioning witnesses.

Okay, all that applies when lawyers are in litigation. The hearing on Thursday is not litigation, the Senators, nor their outside counsel are presenting their case to a court of law. Arguably the same considerations do not necessarily apply.

I’d like to think that lawyers share one commonality: A desire to learn the truth.

I became a lawyer because I wanted to help people. I’d like to think that over my 35 years of practice, I did. I didn’t pursue my career because I wanted to make money (which is a good thing, as it turned out). Most of my professional life, I spent in the public sector. as City Attorney, Assistant Attorney General, and investigating citizens’ complaints of police misconduct for a Police Commission. I know a little bit about investigations. I know a lot about conducting interviews and interrogations, and I know how to discern when someone is being truthful.

There are ways of doing it. Ways that most Senators do not know, and besides, making political points is usually more important to the Senators than discerning the truth.

When I was working for the Attorney General, I investigated official misconduct of elected officials who were not subject to impeachment proceedings. I traveled around the state subpoenaing documents, taking sworn statements, interviewing witnesses.

Interviewing police misconduct, I interviewed thousands of police officers from patrol to Chief, citizens, witnesses and “specialists” in police practices.

I’ve been around the track a few times, and I can tell you, sadly, that Senators are mostly inept when it comes to questioning witnesses.

I’d like to think that lawyers share one commonality: A desire to learn the truth.

For instance, Judge Kavanaugh has issued unequivocal, blanket denials to all of the allegations that have been leveled against him. It is unlikely that he would ever move off those denials. Therefore, a lawyer might approach him as follows (and this is where an outside counsel might prove prudent–as long as fact finding is the goal):

Outside counsel (OC): “You have previously stated under oath that you have never engaged in the types of activities of which you have been accused by the various alleged victim’s who have come forward, isn’t that correct?”

Judge Kavanaugh (JK): “That is correct.”

OC: “Judge Kavanaugh you have practiced law for 25 years and have served on the federal bench for the past 12, isn’t that correct?”

JK: “That is correct.”

OC: “Do you have a general understanding of the definition of sexual assault?”

Counsel would then move the witness in the direction of ascertaining his understanding of the definition of sexual assault. Counsel would then ask the witness whether the nonconsensual touching of private body parts could fall under the definition of sexual assault.

Once counsel ascertained the witnesses understanding in that area, counsel might move on to the witnesses understanding of right versus wrong, such as,

OC: “Notwithstanding the presence of a statute defining “sexual assault” wouldn’t you agree that the nonconsensual touching of another person’s private parts is wrong?”

I believe it would be very difficult for a witness to deny the morality of such circumstances.

OC: “Judge Kavanaugh, did you ever drink to excess when you were in high school?”

Now, the witness might deny that he did ever drink to excess in high school, but he might that he did, on occasion, drink. You see, this is very similar to when I used to prosecute speeding tickets when I was City Attorney. Typically, the police officer would write on the ticket that he observed the defendant traveling, for example, 30 mph in a 20 mile-per-hour zone. Invariably, the defendant would deny that he or she was driving 35 per hour. I would then ask, “Might you have been driving 25 mph instead?” Usually, the defendant would respond, “Yes, I might have been driving 25 but I definitely was not driving 30 mph.” I would then rest my case and the judge would declare the defendant guilty as charged. You see, I didn’t have to prove that the defendant was actually driving 30 mph, I just had to prove that the defendant was driving over the posted speed limit. This is similar to what I am talking about here.

Now back to Judge Kavanaugh’s questioning. All we are looking to do is to get the witness to admit that he drank alcohol while he was a high school student. Then counsel would follow up with a question about the legal drinking age in Maryland at the time he was in high school, concluding with, “So at the time when you were 17 [sic] and drinking alcohol when you were a student in high school, you knew the legal age was 21?”

And so counsel, if they are worth their salt, should be able to lay the framework for an assessment of the witness’ credibility by laying out facts, getting the witness to accede to those facts and then letting other witnesses fill in the blanks that would show to a reasonable person that the witness was not truthful.

Rather than making this a hit-or-miss situation, why not embed it into our legislative system?

OFFICE OF SPECIAL SENATE COUNSELNow, flagging honesty, I don’t know if such an office exists, but if it doesn’t maybe it should. In my world, it would be a bipartisan office. The “chief counsel” would be appointed by the Speaker Pro Temp (like McConnell) for a term of 10 years. One of its chief missions would be to “interrogate” presidential appointees, and attendant witnesses, at senate hearings.

By a specified date and time prior to the hearing, all Senators on the Judiciary Committee would be required to submit, in writing, all their questions, and a list of witnesses they would have called to testify together with a proffer (a statement setting forth the expected nature of the testimony of each witness and a summary of its relevance to the proceedings). The counsel’s office would then, with full knowledge of the areas of inquiry and the facts sought to be elicited, compile a list of questions for the nominee, which would be asked at the hearing, together with followup questions.

Senators on the committee would then be given a brief amount of time, say 10 – 15 minutes each, to interpose their own questions, after which the senate counsel would be given a set amount of time to close with his own followup questions.

If we as a people are truly concerned with vetting and appointing fully qualified nominees to all branches of government, but especially to the United States Supreme Court, it would seem prudent that setting forth a process which removes the vetting and public interviewing portion as far as possible from politics, while still providing for participation of the Senate committee members in both the setting of parameters and issues to be covered in the hearings and of the witnesses to be presented beforehand, and by their questioning of the nominee and witnesses themselves, would provide a much more meaningful process evoking real information about the quality, qualities and fitness of nominees to these very important positions.

In case you were wondering . . .

]]>http://larryshockey.com/outside-counsel-to-question-kavanaugh-good-idea-or-not/feed/0983Can Christine Blasey Ford Accomplish What Anita Hill Couldn’t?http://larryshockey.com/can-christine-blasey-ford-accomplish-what-anita-hill-couldnt/
http://larryshockey.com/can-christine-blasey-ford-accomplish-what-anita-hill-couldnt/#respondTue, 18 Sep 2018 21:30:29 +0000http://larryshockey.com/?p=972In a Hail Mary play in the last seconds of the 4th quarter of the consideration of Brett Kavanaugh for appointment to the US Supreme Court, Democrats have thrown their entire pot of pasta against the wall hoping that something would stick. Will it?

Twenty-seven years ago, in 1991, Anita Hill–reluctantly–appeared before a Senate Judiciary Committee hearing considering the nomination of Clarence Thomas to the bench. Democrats held the majority in the Senate at that time. Clarence Thomas, if confirmed, would be only the second African American to be elevated to the Court.

Just as a side note.
In 1991 Anita Hill was a law professor at the University of Oklahoma School of Law. She was the constituent of Oklahoma Sen. David Boren, who cast the deciding “yes” vote confirming Clarence Thomas to the bench.

Christine Blasey Ford is a clinical psychology professor at Palo Alto University in California. A biostatistician, she “specializes in the design and analysis of clinical trials and other forms of intervention evaluation,” according to the university. Her work has also been published in several academic journals, covering topics such as 9/11 and child abuse.

Both cases are similar in that they both allege sexual misconduct on the part of the nominee and that said misconduct was raised at the 11th hour during the proceedings. But that is pretty much where the similarities end.

In 1991, the Senate Judiciary Committee consisted only of white men and was controlled by Democrats, being chaired by Sen. Joseph Biden, Junior. In the matter of the Thomas-Hill controversy the conduct alleged amounted to the creation of a hostile work environment vis-à-vis sexual harassment. In the Kavanaugh-Ford controversy, the conduct alleged is that of actual sexual battery.

Judge Kavanaugh’s proponents argue that because the alleged misconduct occurred some 36 years ago when Kavanaugh was only 17 (and Ms. Ford was only 15) the matter should not be given serious attention, because after all “boys will be boys.”

Let’s not forget that just 2 years ago a 19-year-old Olympics bound Stanford swimmer named Brock Turner was convicted of sexually assaulting an unconscious young woman while he was under the influence of alcohol. Mr. Turner was convicted of criminal charges and served time in jail (although many would argue not nearly enough time).

In the current matter, there is an important distinction: there is an eyewitness, Mark judge, who was then and continues to be a close friend of Judge Kavanaugh.

It is also important to note that Dr. Ford has taken and passed a lie detector test. She also spoke openly of the matter to her therapist and has offered both the therapist and the therapist’s notes in support of her allegations. To counter these facts, the Republican members of the Senate have offered a letter signed by 65 women attesting to the upstanding character of the judge and his outstanding attitudes towards women.

Today we are learning that the scheduled vote on Kavanaugh’s confirmation has been continued until a hearing is concluded on Monday of next week following the testimony of both Judge Kavanaugh and Dr. Ford. At this time it is not clear whether the Senate Judiciary Committee will allow the testimony of either Dr. Ford’s therapist or of the eyewitness, Mark Ford, or whether they will allow the submission of either or both the lie detector test and therapist’s notes.

In short, if Chairman Grassley refuses to allow the submission of evidence or the testimony of corroborating witnesses, the testimony of Dr. Ford and of Mr. Kavanaugh on this issue will likely be less than satisfying or conclusive, but will simply provide cover to the Republican members of the Senate for a vote of confirmation to the US Supreme Court.

Some political pundits in Washington DC feel that this matter may never get to a hearing on Monday as background reports from anonymous sources within the administration seem to indicate that judge Kavanaugh’s nomination very well could be withdrawn. If so, that could provide the cover red state Democratic Senators who are running for reelection in November need in order to vote their conscience.

If there is one glaring difference between the Thomas and Kavanaugh confirmations, it is the growing impact that women are having in our society and our culture and their refusal to be discounted when it comes to accusations of the sexual misconduct of men, however powerful. Will it be enough?

President Trump announced (unsurprisingly) that he felt very sorry for Judge Kavanaugh, saying a man of his qualifications should not have to go through such scrutiny. Although, the president stated his belief that both parties should be heard by the Senate Judiciary Committee, he declined to order the FBI to reopen its investigation into Kavanaugh, saying that wasn’t the kind of thing the FBI does, which was either a clear misunderstanding of their mission or a complete smokescreen.

The “failing” New York Times, in an article on whether this social shift might make a difference this time around, reported quotes from Senators who were around for the Thomas hearings are who are around still:

“There are a few players still involved from 1991. Senators Charles E. Grassley of Iowa and Orrin G. Hatch of Utah, both Republicans, were on the Judiciary Committee then as now. Back then, Mr. Hatch said Ms. Hill’s account struck him as “too contrived, too slick.” On Monday, he said Dr. Blasey might be “mixed up” and confused Judge Kavanaugh with someone else.”

. . .

“Former Senator John C. Danforth, Republican of Missouri, who was one of Justice Thomas’s most prominent defenders, said that he sees a tragic repeat. “I just feel so terribly sorry for Kavanaugh and what he’s going through,” he said. “Here’s a man who’s had just a marvelous reputation as a human being and now it’s just being trashed. I felt the same way about Clarence.”

He added that the presumption of guilt has only grown since 1991. “With the #MeToo movement, it makes it even harder for him,” Mr. Danforth said. “It was bad enough for Clarence, but this is really going to be difficult.”

Clearly, there is a need for more women in Congress. Clearly, there is a need for more people in government, from the local levels all the way to Washington, who reflect the common values of the majority of US citizens, not only on women’s issues, but across the board. The November midterms stand to be a watershed for the country, either way.

This week, on Thursday, the United States Senate will bring to the floor the confirmation of Brett Kavanaugh to the United States Supreme Court. Over the past several weeks, during his hearing before the Senate Judiciary Committee, the debate has raged over his qualifications and fitness to serve as a justice on this country’s highest court.

First off, Senate Republicans, determined to seat Kavanaugh on the bench before October 1, in time for the beginning of the Court’s term have railroaded this process at break neck speed. Approximately 90% of the documents relevant to the nominees qualifications have yet to be either produced or have been excluded under the guise of the invocation of executive privilege by the White House.

Chairman Grassley oversaw the hearing process with an iron fist, refusing to observe regular process or to recognize points of order.

The nominee himself was extremely obstreperous, refusing to give direct answers to simple questions and referring to almost all legal questions as “hypotheticals” that he would be unable to answer.

But thanks to the limited record that was made available one can gather some insight into the judges passed and how he might likely rule on relevant issues in the future.

Reproductive Rights
While serving on the circuit court judge Kavanaugh wrote in a dissent that while the appeals court was bound to a they Supreme Court rulings that said that the Constitution protects a woman’s right to choose an abortion, those precedents left room for the government to apply “reasonable regulations that do not impose an undue burden.”

Although Kavanaugh has referred to Roe v. Wade as “settled law” he seemed to indicate in an earlier writing that although the court’s decision was precedent that could not prevent the court from tinkering around the edges of the decision.

In a 2015 case regarding employers’ requirements to provide birth control coverage to employees, Kavanaugh dissented from the decision to uphold the requirements of the contraceptive mandate of the ACA, siding with employers who opposed providing birth control for religious reasons. —elite daily

ReligionIn fact, Kavanaugh tends to side with parties who claim interference with their religious liberties on First Amendment claims. In 2010, atheists challenged the saying of a prayer at presidential inauguration’s and the phrase “so help me God” in the presidential oath of office. A three judge panel simply dismissed the lawsuit saying the plaintiffs lacked standing. Kavanaugh however weighed in on the merits in a dissent where he argued the practice was clearly constitutional, citing the principle that government-sponsored religious speech or prayer at public events where prayers were traditionally said do not violate the First Amendment’s prohibition on establishment of religion as long as the prayers are “not proselytizing or otherwise exploitative.” –New York Times

Gun RightsIn 2011, the Court of Appeals for the District of Columbia, the circuit where Kavanaugh works, overruled a challenge to a DC law that required gun owners to register their weapons and band possession of semiautomatic rifles. Kavanaugh dissented, writing that while the government may been fully automatic machine guns, a ban on semiautomatic rifles should be unconstitutional because they “have not traditionally been banned and are common in use by law-abiding citizens for self-defense in the home, hunting and other lawful uses.” He also said that because registration had not traditionally been required for all lawfully possessed guns, that rule should be struck down, also. –New York Times

In Other Areas . . .

Kavanaugh has repeatedly ruled against government agency findings when challenged by businesses such as dissenting from a ruling upholding Obama’s FCC net neutrality rules; taken a skeptical approach to EPA regulations addressing greenhouse gas emissions;

Rules for the government and against individuals’ civil rights claims making it more difficult for Guantanamo Bay detainees to bring habeas corpus cases, even when the evidence of their suspected ties to terrorism were weak.

He refused to answer questions about whether a sitting president could

be compelled to respond to a subpeona,

pardon himself,

And he refused to say that he would recuse himself from any criminal or civil case related to President Trump, who nominated him. ABC News

And there is the honesty issueas to whether the nominee was truthful in his testimony during the hearing on his appointment to the Circuit Court.

In 2006, under questioning by the late Dem Senator Ted Kennedy, Kavanaugh said he wasn’t involved in the selection and vetting process of controversial conservative judge William Pryor. Turns out there are now emails proving Kavanaugh was intricately involved in Judge Pryor’s vetting.

During his 2006 confirmation hearings for the DC Circuit Court of Appeals, under questioning by Dem Senator Patrick Leahy, Kavanaugh outrightly denied ever receiving stolen Dem documents from Republican operative Manuel Miranda. Now during his confirmation hearings to the U.S. Supreme Court, after being confronted with emails between him and Miranda, he finally admitted to Senator Leahy that he did indeed receive the stolen Dem documents.

Kavanaugh also lied about George W. Bush administration’s “Terrorist Surveillance Program”. Kavanaugh initially testified under oath that he found out about the program through a 2005 New York Times article. Well, turns out there is a 2001 email in which Kavanaugh is asking a DOJ lawyer: “Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?”. This again proves that Kavanaugh knew about the terrorist surveillance program way back in 2001.

Mr. Kavanaugh has expressed doubts, in a 2009 law review article, about whether a sitting president should be subjected to investigations and as to whether sitting presidents could be indicted, which is troubling given the political chaos in Washington and the possibility that such matters could likely come before the Supreme Court in the near future at a time when Kavanaugh, should he be confirmed, could cast the swing vote on these issues.

With 12 years of service on the Court of Appeals and more than 300 written decisions under his belt, there can be no question that Justice Kavanaugh knows how to be a judge. The question then, is whether he is “fit” for the job.

Bernie Madoff unquestionably was qualified to trade stocks on Wall Street, Richard Nixon was qualified to serve as president, but were they “fit” for the job? No. Given Mr. Kavanaugh’s personal leanings on all of the topics listed above, I say no. This is a job interview. We get to weigh resumes, examine past performance in deciding who to hire.